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Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant worked as a Chef with the Respondent from 22 June 2001 until 28 April 2018. The Complainant has submitted a complaint under the Employment Equality Acts.

The Respondent rejects the complaint.

The Complainant had previously submitted a complaint under the same legislation in respect of the same employment to the WRC. That complaint was received by the WRC on 5th November 2015 and the adjudication hearing was held on 1st February 2017.

An Adjudication Officer Decision was issued on 28th June 2017 in which the Adjudication Officer found that the Complainant failed to prove a prima facia case of discrimination. That Decision was not appealed to the Labour Court.

Preliminary Issue: Res Judicata

Summary of Respondent’s Case:

The Respondent submits that the legal doctrine of res judicata, whereby a party is precluded from seeking to litigate the same issue twice applies in this case.

The Respondent submits that the vast bulk of the herein complaint has already been adjudicated upon and has been found to be completely without foundation.

The Respondent submits that the booklets of evidence provided to the WRC in support of the herein complaint are the same booklets of evidence which were provided at the hearing of the original claim before the WRC in February 2017.

The Respondent submits that although the previous complaint was lodged in November 2015, on the day of the hearing, issues up to and including 2016 and 2017 were allowed by the Adjudication Officer to be heard.

The Respondent submits that at the previous hearing, the Complainant and his representative confirmed that they were happy that all of the issues that they had raised had been dealt with by the Adjudication Officer on the day.

The Respondent submits that the only substantive difference in the herein complaint is that the Complainant has now added a claim for discriminatory dismissal as his employment with the Respondent ended on 28 April 2017.

The Respondent submits that the WRC Adjudication Officer in the previous case found that a prima facie case of discrimination was not proven by the Complainant such that the complaint failed.

The Respondent submits that as the Complainant did not appeal the Adjudication Officer Decision in the previous case the findings of said Decision stand.

The Respondent submits, therefore, that it is clear that the Complainant cannot now a) seek to have the same issues adjudicated upon again (the principle of res judicata), and b) there is no credence to any evidence or reliance by the complainant now that the ‘treatment’ complained of amounted to unreasonable or discriminatory treatment within the meaning of the legislation, as that burden of proof has not been satisfied.

The Respondent submits that the complaint is frivolous and vexatious and should be dismissed.

The Respondent has submitted the following precedent in support of their case: Cunningham v Intel Ireland Limited [2013] IEHC 207.

Summary of Complainant’s Case:

The Complainant’s representative submits that discrimination is an ongoing behaviour and that she wishes to take a holistic approach to the case.

The Complainant’s representative advised the hearing that she wished to commence her submission from 2009 and that if she could not do that, then she was not prepared to make a submission to the hearing.

Findings and Conclusions:

I advised the Complainant and his representative that I was precluded by the legal doctrine of res judicata from hearing any submissions relating to matters which had been the subject of a previous Adjudication Officer hearing.

The Complainant’s representative advised the hearing that she was not prepared to make a submission unless it covered the period of the Complainant’s employment commencing in 2009 and ending on 28 April 2018 and, accordingly, that she would not be making a submission to the hearing.

I find, therefore, that the Complainant did not present a case at the adjudication hearing.

I find that the complaint fails for want of prosecution.

I note the Respondent’s request to dismiss this complaint as frivolous and vexatious. I will not be making such a finding as the Complainant has a period of employment with the Respondent which was not covered by the previous Adjudication Officer Decision in respect of which he is entitled to submit a complaint to the WRC.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.